Appellate Court Reignites Single-Call TCPA Case


7/10/2017 9:29:00 PM

Third Circuit Court of Appeals finds consumer has standing for TCPA claims.



In a decision on July 10, 2017, the U.S. Court of Appeals for the Third Circuit ruled that a consumer sufficiently alleged a cause of action under the Telephone Consumer Protection Act based on a single prerecorded call to a cell phone, regardless if the owner was not charged for the call, and that the consumer sufficiently alleged a concrete injury (albeit intangible harm) to establish constitutional standing to sue. In doing so, the Third Circuit reversed and vacated a lower court’s judgment dismissing the consumer’s case for lack of subject matter jurisdiction.


In the case, Susinno v. Work Out World Inc., No. 16-3277, 2017 WL ------ (3d Cir. July 10, 2017), the consumer claimed that the gym chain violated the TCPA when it left one allegedly unsolicited voicemail regarding a VIP membership offer at its health and fitness facility, and sought to certify a nationwide class of persons who received similar messages without first providing their express consent. The consumer alleged in her TCPA complaint that she suffered harm from the single unanswered call in the form of reduced cellular telephone time, time wasted retrieving voicemail, depletion of her cellular telephone battery life, aggravation, annoyance, nuisance and invasion of privacy. 


The gym chain filed a motion to dismiss, arguing that such series of superficial and abstract complaints (not actual injuries) do not reasonably rise to the level of concrete-harm sufficient to satisfy the injury-in-fact standing requirement of Article III as the U.S. Supreme Court explained in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016).


The district granted the gym chain’s motion to dismiss the consumer’s claims, finding that (1) a single solicitation was not “the type of case that Congress was trying to protect people against,” and (2) that the consumer’s receipt of the call and voicemail caused her no concrete injury.  The consumer immediately filed a notice of appeal to the Third Circuit.


On appeal, the Third Circuit reversed the decision of the district court. The appellate court rejected the gym chain’s argument that the TCPA’s prohibition of prerecorded calls to cellular phones, 47 U.S.C. § 227(b)(1)(A)(iii), does not apply to phone calls not charged to the recipient. The appellate court also concluded that the consumer’s claim of “nuisance and invasion of privacy” alleged a sufficiently concrete injury to the consumer to confer Article III standing according to Spokeo.  


Standing has become a major issue in TCPA litigation in recent years (especially since the U.S. Supreme Court issued its decision in Spokeo) because whether a plaintiff can clear this basic litigation hurdle can determine if the parties will face expensive litigation or possible settlement, both of which may cost the defending company tens of thousands, if not millions, of dollars. In an attempt to build an arsenal of case law to help curb the explosion of frivolous consumer suits and class actions in federal court against the credit and collection industry, and reduce the consumer bar’s ability to weaponize the TCPA (and FDCPA) for the purpose of generating million-dollar claims against debt collectors who visited no harm on consumers, ACA submitted a “friend of the court” brief to the Third Circuit in the Susinno case.  


Although ACA is disappointed that the Third Circuit did not affirm the lower court’s decision that the consumer lacked standing to bring her single-call TCPA claim, this loss does not take away from the 31 industry-favorable decisions (wins) ACA has helped to achieve for its members through its Industry Advancement Program.


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